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Judge questions whether House can sue over border wall funding

By TODD RUGER | CQ-Roll Call | Published: May 23, 2019

WASHINGTON (Tribune News Service) — A federal judge in Washington expressed skepticism Thursday about whether the federal courts should jump into the middle of an “ugly dispute between the political branches” over the Trump administration plan to move around federal funds to build a border wall.

U.S. District Judge Trevor N. McFadden said that a House lawsuit to block the Trump administration’s spending was in “unusual territory,” since higher courts have never ruled on whether the legislative branch could sue the executive branch.

And McFadden said the issue of whether the House can bring the lawsuit at all “strikes me as a significant issue in this case.” He spent most of a three-hour hearing grappling with the broader separation of powers showdown over control of government spending.

The judge asked Douglas Letter, the House general counsel, whether the House “utilized all the tools at its disposal before rushing into court.” And at another point, McFadden asked, “There are other tools in your arsenal here, right?”

Letter said the House did exactly what it needed to do to deny President Donald Trump’s full request for border wall construction funds with “amazing specificity” during the high-profile government shutdown — and then Trump said he would spend money on the border construction anyway.

Congress doesn’t need to pass another law or tweak appropriations riders to say, “no, no, we really meant it,” Letter said. Trump made it clear that he was not happy with Congress and would act on his own, and “he’s not saying, ‘If you would just pass another statute, I’ll stop.’”

The country’s founders would be cheering his argument, Letter said, because “we cannot have the president appropriating money” and the Supreme Court would not be comfortable saying Congress could never sue over the issue.

“There’s nothing more important to the institution of Congress, and therefore to the American people, than the appropriations power,” Letter said.

The Justice Department argued that the Constitution doesn’t hint at litigation between the political branches because it gave them other ways to resolve disputes. The lawsuit “would have been ridiculous” to the founders, James Burnham of the DOJ said.

“The Constitution does not give the president the ability to sue the House, and does not give the House the ability to sue the president,” Burnham said.

Congress might have denied the president’s request for border wall funding during the shutdown, Burnham said, but lawmakers then gave the administration the authority to transfer money in two laws last fall (the 2019 defense authorization and defense spending bills) and lawmakers could have restricted that authority then if they wanted.

That makes this a legal dispute about what some technical statutes mean and whether the administration is not appropriately executing a statute, and not a broad appropriations power dispute, Burnham said.

He added that if there’s no legal debate, a federal law would prevent officials from spending money without congressional approval. Congress could pass more specific legislation — and this litigation is brought by just one chamber of Congress, Burnham said.

McFadden said his instinct is that clearly Congress did deny Trump’s preference for funds, however Congress did give authority for the alternative funding mechanisms used by the administration and did not deny those.

McFadden said he will rule at a later date whether to block the Trump administration from transferring Defense Department funds for the projects.

The House case is one of several challenging the administration plan to spend up to $8.1 billion for construction of southern border barriers under three separate laws. Trump made the move in February after he asked Congress for $5 billion for a border wall and Congress instead appropriated $1.375 billion.

A federal judge in California is also deciding whether to block the spending.

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